Two months into the new government, one of its ministers may be legally prohibited from serving in his position, The Times of Israel’s Hebrew-language sister site, Zman Yisrael, has found.
Jewish Home MK Rafi Peretz, the new minister of Jerusalem Affairs and Heritage, may qualify as a “secessionist MK,” under the country’s Basic Law: The Government, making him ineligible under the constitutional basic law to serve as a minister.
The restriction placed on “secessionist MKs” — lawmakers who are elected on a party list, and then secede from their faction once in office — came after decades in which ruling coalitions were able to entice individual opposition lawmakers away from their parties with the promise of plum appointments.
To reduce the prevalence of such behavior, the basic law stipulates that an MK who abandons his or her party cannot serve in a cabinet post and cannot run for Knesset again in an existing party.
Until the Zman Yisrael examination, it was widely believed that Peretz did not qualify as a secessionist MK. An exception exists in the law for different parties that run together on joint lists to separate once elected.
The Yamina list on which Peretz was elected is an alliance of several formally registered parties, including Peretz’s Jewish Home. When he left, Peretz said he was leaving not as an individual MK, but as head of the Jewish Home party within the Yamina alliance, which would seemingly exempt him from the secession rule.
There is just one problem: Knesset records show that neither Yamina nor Peretz formally requested the separation, and the Knesset House Committee never voted to approve it, as the law requires.
Peretz thus remains a member of the Yamina faction, and one who joined the coalition as a rogue secessionist MK, while his faction voted to stay in the opposition.
The Basic Law: The Government stipulates three requirements for declaring an MK “secessionist”: abandoning one’s faction as an individual without a split into two recognized factions/parties; voting against one’s faction on “a fundamental issue”; and receiving some personal benefit for that vote.
Peretz seems to meet all three tests. He abandoned his faction without formally separating the parties, voted for the new government’s establishment while all other Yamina MKs voted against it, and was appointed a cabinet minister for his efforts.
Separation costs money
On May 14, when Peretz’s agreement with Prime Minister Benjamin Netanyahu to join his government as minister for Jerusalem Affairs and Heritage became public, Yamina announced to the press it was “filing a request to separate from Rabbi Rafi Peretz, and wish him success.”
But the request was never filed. Peretz is still formally registered as a Yamina MK in the Knesset record.
One possible reason for Yamina’s failure to file the separation request: the drop from a faction of six to a faction of just five MKs pushes Yamina into a lower public-financing bracket. Knesset factions get public funding per MK; larger parties get more for each lawmaker, one of many measures intended to discourage the splintering of parties.
Dropping Peretz would cost Yamina an estimated NIS 160,000 ($47,000) per year.
Yamina may also be hoping to ultimately join the Netanyahu government, making the separation unnecessary.
Peretz appears to have dodged the legal prohibition through an accident of parliamentary timing.
The law places the onus for declaring an MK “secessionist” on the Knesset House Committee. Peretz de facto joined the Netanyahu government on May 14. The Knesset House Committee held its inaugural meeting in the 23rd Knesset on May 27, and has had more pressing issues to consider since.
The Knesset’s legal adviser’s office told Zman Israel: “As far as we know, no request to separate [parties] or to declare an MK to have seceded from their faction was filed to the House Committee. For an MK to be considered to have seceded, the House Committee must examine the facts and conclude that the conditions of Article 6A of the Basic Law: The Knesset are fulfilled, and to let the MK make his case. Until a determination is made one way or another, the MK is not classified as having seceded, and may continue to serve as a minister.
“In this specific case, it appears that a separation request can be filed, which, if filed, would render the secession question moot.”
Yet constitutional law experts consulted by Zman Yisrael appeared to disagree. Peretz, they say, is already, in practice, a secessionist MK in every sense set down in law — a fact that should prevent his appointment as minister for the duration of the current Knesset.
The experts asked not to be named due to the sensitivity of the subject.
Reached by Zman Israel, Peretz’s office said the matter was being looked into.
Yamina declined to respond to questions posed by Zman Israel.
The next election
According to various media reports, Peretz is hoping to unify his Jewish Home party with Likud for the next election. Yet under law — if he is indeed a “secessionist MK” — he can only run again in a party not currently in the Knesset, or one he establishes himself.
While constitutional experts concurred with Zman Yisrael’s findings, they were divided over the immediate significance of Peretz’s status.
Peretz may be able to sidestep the prohibition in the law by belatedly formalizing his split from Yamina — if the House Committee can be convinced to approve the move retroactively.
He could also resign from the Knesset while keeping his ministerial post, though that would hand his seat back to Yamina, shifting one parliamentary vote from the coalition column to the opposition.
In any case, say the experts, he cannot stay in the Knesset and in the government while his status vis-a-vis Yamina remains unresolved.
Mirror image on the left
There is another similar case in the current Knesset, but it runs in the opposite direction: MK Merav Michaeli of the left-wing Labor party.
Michaeli refused to join the coalition, even as the two other members of her three-member faction, Amir Peretz and Itzik Shmuli, eagerly entered the government and became the ministers of the economy and welfare respectively. Michaeli has become a kind of internal opposition within Labor.
Since the government’s formation in May, Michaeli has denounced it in the Knesset, in the media and online, and has voted against the government repeatedly and on issues fundamental to its agenda — including a vote against its very formation.
Unlike Peretz, Michaeli’s explicit opposition to her own faction brought no personal boon, but may constitute a “secessionist” act in its own right.
According to legal experts, if Labor chairman Amir Peretz, or anyone else for that matter, successfully petitions the House Committee to declare her a seceding MK, Michaeli will not be eligible to run on the Labor list in the next election.
Times of Israel staff contributed to this report.